No Easy Answers
Wednesday, June 18, 2008
Blackwater seeks Sharia Law - McMahon v. Presidential [Doc 145]
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
JEANETTE McMAHON, as Personal CASE NO: 6:05CV1002-ORL-28JGG
Representative of the Estate of Michael
McMahon, TRACY GROGAN, as Personal
Representative of the Estate of Travis
Grogan, and SARAH MILLER, as Personal
Representative of the Estate of Harley Miller,
Plaintiffs,
v.
PRESIDENTIAL AIRWAYS INC., a Florida
corporation, AVIATION WORLDWIDE
SERVICES, LLC, a Florida limited liability
Company, STI AVIATION, INC., a Florida
Corporation, AIR QUEST, INC., a Florida
Corporation,
Defendants
/
DEFENDANTS' 12(b)(6) MOTION TO DISMISS
AND INCORPORATED MEMORANDUM OF LAW
Even as Defendants Presidential Airways, Inc., Aviation Worldwide Services
LLC, STI Aviation, Inc., and Air Quest, Inc. (collectively "Presidential"), prepare to
pursue the Political Question Doctrine roadmap provided by the 11th Circuit for
dismissing this matter on constitutional grounds,1 Presidential submits this Motion to
1
See, e.g., McMahon v. Presidential Airways, Inc., 502 F.3d 1331, 1365 & n. 36 (11th Circ. 2007) ("We
expressly do not (and could not) hold that this litigation will not at some point present a political question.
The existence of a political question deprives a court of jurisdiction. As a result, Presidential remains free
to assert the argument at any time, and the district court has an independent obligation to make sure that the
disposition of the case will not require it to decide a political question. . . . We emphasize that our decision
is based only on the record considered by the district court: the complaint, the contract, and the SOW.
Presidential remains free to argue that other evidence justifies dismissal on political question grounds."
(internal citation omitted)); see also id. at 1351 ("[P]rivate contractor agents may be entitled to some form
of immunity that protects their making or executing sensitive military judgments, and that overlaps and
possibly extends beyond the protection provided by the political question doctrine.").
Dismiss pursuant to Fed.R.Civ.P. 12(b)(6) and the doctrine that "federal courts should
avoid reaching constitutional questions if there are other grounds upon which a case can
be decided." BellSouth Telecomms., Inc. v. Town of Palm Beach, 252 F.3d 1169, 1176
(11th Cir. Fla. 2001). This approach is consistent with "the prudential concern that
constitutional issues not be needlessly confronted,"2 as well as the interest of "saving the
parties as well as the court time and expense."3
Presidential therefore hereby moves for dismissal of the Plaintiffs' Amended
Complaint on the non-constitutional grounds that even assuming the accuracy of all facts
alleged in the Amended Complaint, Plaintiffs have failed to state a cause of action under
applicable law. Specifically, Plaintiffs' Amended Complaint is governed by the law of
Afghanistan, which does not recognize causes of action based on respondeat superior
and indirect liability. Accordingly, the Amended Complaint does not state a viable claim
upon which relief may be granted as to the named corporate Defendants.
I. BACKGROUND FACTS
Defendant Presidential Airways, Inc. entered into a contract with the United
States military under which Presidential provided airlift support to the Department of
Defense in Afghanistan. (Amended Compl. at � 13.) 4
On November 27, 2004, a Presidential aircraft engaged in Operation Enduring
Freedom was providing air cargo services and carrying three members of the United
States military from Bagram, Afghanistan to Farah, Afghanistan. (Amended Compl. at �
2
Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S.
568, 575 (1988); United States v. Valenti, 999 F.2d 1425, n 1 (11th Cir. 1993) (acknowledging "time
honored principle that courts should avoid rendering sweeping constitutional decisions when a more narrow
path is available").
3
Brown v. Crawford County, Ga., 960 F.2d 1002, 1010 (11th Cir. 1992) (internal quotes and cites omitted).
4
All factual allegations are from the Plaintiffs' Amended Complaint and, solely for purpose of this motion,
are deemed accurate. Incidentally, Presidential still provides airlift support to the United States Armed
Forces in Afghanistan.
2
17.) The military passengers were Michael McMahon, Travis Grogan, and Harley Miller.
(Amended Compl. at � 26.) The aircraft crashed en route to Farah, Afghanistan
(Amended Compl. at � 17.), resulting in the deaths of the three active duty servicemen
and the three members of the Presidential flight crew on the mission. (Amended Compl.
at � 30.)
The Plaintiffs assert that the immediate causes of the crash were the flight crew's
negligence in failing to wear available oxygen masks, failing to properly plan and execute
the flight, failing to maintain sufficient air speed and altitude above terrain, failing to
maintain adequate terrain clearance appropriate for the route of flight, failing to prevent a
stall, and failing to comply with what Plaintiffs claim are applicable Federal Aviation
Regulations. (Amended Compl. at �� 33h, i, k, l, r and s). Through the doctrine of
respondeat superior, the Plaintiffs claim that Presidential is vicariously liable for the
alleged in-flight negligence of the crew in Afghanistan. (Amended Compl. at � 25.)
The Plaintiffs also allege that Presidential is indirectly liable for the actions of
Presidential's flight operations personnel in Afghanistan, who allegedly failed to use
reasonable care in entrusting the aircraft to the flight crew, failed to properly conduct and
supervise route planning and flight planning activities, failed to adequately brief the flight
crew, failed to provide the flight crew with adequate equipment, and failed to have in
place procedures for locating the flight. (Amended Compl. at �� 33 a-g, j, m-q, and t.)
II. ARGUMENT
A. Legal Standard
A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of a
complaint and is designed to eliminate counts or complaints that fail to state a claim upon
3
which relief can be granted. Palmer v. Santa Rosa County, 2005 U.S. Dist. LEXIS 34314
(D. Fla. 2005). Dismissal for failure to state a claim is appropriate if the plaintiff fails to
plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic
Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007). A plaintiff's obligation to set forth the
grounds for its entitlement to relief "requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action." Id. at 1964-65. "Factual
allegations must be enough to raise a right to relief above the speculative level." Id. at
1965; Am. United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007).
When ruling on a motion to dismiss, the court is not required to accept as true the
plaintiff's conclusions of law. See Solis-Ramirez v. United States Dept. of Justice, 758
F.2d 1425, 1429 (11th Cir. 1985). Neither should a court accept a plaintiff's "conclusory
allegations, unwarranted factual deductions or legal conclusions masquerading as facts"
to avoid dismissal. Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).
Dismissal must be granted if, even assuming the factual allegations of the
plaintiff's complaint are true, there is a dispositive legal issue which precludes relief.
Brown v. Crawford County, Ga., 960 F.2d 1002, 1010 (11th Cir. 1992) ("Federal Rule of
Civil Procedure 12(b)(6) authorizes a court to dismiss a complaint on the basis of a
dispositive issue of law." (internal quotes and citations omitted)).
B. Plaintiffs' Amended Complaint, Based on Claims of Presidential's
Indirect Liability for Alleged Negligent Conduct in Afghanistan is
Governed by the Law of Afghanistan
On August 11, 2006, this Court recognized the threshold nature of the choice of
law issue when it asked, "why we would be looking to Florida Law." Hearing on
Motion to Dismiss August 11, 2006, p.3. In fact, as explained below, the Court should
4
apply the law of Afghanistan to the Plaintiffs' claims of respondeat superior and indirect
liability against Presidential, and based upon this "dispositive issue of law" the Court
should dispose of this entire matter forthwith "[i]n the interest of judicial economy."
Brown v. Crawford County, 960 F.2d at 1010 ("By prolonging this case, the district court
failed to serve the purported goals of its local `procedure' of saving the parties as well as
the court time and expenses. This case should not have been prepared for trial; moreover,
it should not have undergone discovery.").
As a starting point for this analysis, a federal court exercising federal question
jurisdiction must apply the federal conflict of laws rule, which follows the "significant
relationships test" as set forth in the Restatement (Second) of Conflict of Laws. Cortes v.
American Airlines, Inc., 177 F.3d 1272, 1296 n.19 (11th Cir. 1999).
Section 175 of the Restatement (Second) of Conflict of Laws provides that, "[i]n
an action for wrongful death, the local law of the state where the injury occurred
determines the rights and liabilities of the parties unless, with respect to the particular
issue, some other state has a more significant relationship under the principles stated in �
6 to the occurrence and the parties, in which event the local law of the other state will be
applied." Restat 2d of Conflict of Laws, � 175.
The Restatement's � 145 provides that the following four "contacts," and the
significance of their relationships to the issues, may be weighed and considered:
(1) the place where the injury occurred;
(2) the place where the conduct causing the injury occurred;
(3) the domicil, residence, nationality, place of incorporation
and place of business of the parties, and
5
(4) the place where the relationship, if any, between the parties
is centered.
See also Cymrot v. Smith Barney, Harris Upham & Co, Inc., 1994 U.S. Dix.
LEXIS 20134, *49 (S.D. Fla. 1994).
Once the contacts are identified, Section 6 of the Restatement (Second) of
Conflict of Laws provides guidance for further analysis as follows:
(1) A court, subject to constitutional restrictions, will follow a
statutory directive of its own state on choice of law.
(2) When there is no such directive, the factors relevant to the
choice of the applicable rule of law include:
(a) the needs of the interstate and international systems;
(b) the relevant policies of the forum;
(c) the relevant policies of the other interested states
and the relative interests of those states in the
determination of the particular issue;
(d) the protection of justified expectations;
(e) the basic policies underlying the particular field of
law;
(f) certainty, predictability and uniformity of result;
and
(g) ease in the determination and application of the law
to be applied.
Importantly, "[t]he doctrine of depecage may call for application of different
bodies of law to different issues in the litigation." In re Air Crash Near Cali, Colombia,
1997 U.S. Dist. LEXIS 14143 (S.D. Fla. 1997). See Restatement (Second) � 145
comment d. ("Each issue is to receive separate consideration if it is one which would be
resolved differently under the local rule of two or more of the potentially interested
states.") See also Emmart v. Piper Aircraft, 659 F. Supp. 843 (S.D. Fla. 1987) (analyzing
separate state interests for compensatory and punitive damages).
6
Based on the foregoing, in the Eleventh Circuit, the conflict-of-laws analysis is
issue-based and focuses primarily on factors (b) and (c) of � 6 of the Restatement
(Second) of Conflict of Laws which looks to the relevant policies underlying the
competing laws. Judge v. American Motors Corp., 908 F.2d 1565, 1570 (11th Cir. 1990).
("As a general proposition, it is fitting that the state whose policy interests are most
deeply affected should have its local law applied.").
In the instant wrongful death case, the dispositive issue concerns the application
of the doctrines of respondeat superior and indirect liability. The jurisdictions with
policy interests implicated by these liability issues are readily identifiable. Primarily,
however, the policy interests of Afghanistan must be considered as it is undisputed that it
is the place where the injuries occurred. Further, the alleged negligent conduct, from the
planning and scheduling of the accident mission to the alleged operational errors, took
place in Afghanistan. Accordingly, Afghanistan's law must be given preference pursuant
to the wrongful death rule of Section 175 of the Restatement (Second) of Conflict of
Laws. See Harris v. Polskie Linie Lotnicze, 820 F.2d 1000, 1004 (9th Cir. 1987)
(Applying Polish law, the Court held that "the comments to the Restatement recognize
that applying the law of the state where the injury occurred 'furthers the choice-of-law
values of certainty, predictability and uniformity of result and, since the state where the
injury occurred will usually be readily ascertainable, of ease in the determination and
application of the applicable law.' Restatement � 175 comment d.").
In aviation accidents, the place of actual injury may be disregarded by courts on
the assumption that the accident site is wholly "fortuitous and unimportant." See
Saloomey v. Jeppesen & Co., 707 F.2d 671, 675 (2nd Cir. 1983). However, where a crash
7
occurs in the area of an aircraft's intended destination, it cannot be said to have occurred
in an entirely fortuitous location. In re Air Crash Near Cali, 1997, U.S. Dist. LEXIS
14143, *16. In Wert v. McDonnell Douglas Corp., 634 F. Supp. 401 (D. Mo. 1986) the
Court rejected the argument that the location of a military aircraft crash was fortuitous in
light of the fact that the accident happened in Arizona, where the pilot was conducting
training runs. Id. at 404.
Like the accident in Wert, the accident location herein was not fortuitous. The
mission originated in Bagram Airfield, Afghanistan and was en route to Farah,
Afghanistan. There was no place other than Afghanistan where this accident could have
occurred. Afghanistan therefore maintains its significant interest as the place where the
injury occurred and as the location of the relevant conduct.5 In fact, no place or entity,
other than the U.S. military, has a more significant relationship to the occurrence and the
parties than Afghanistan.
Plaintiffs may ask this Court to recognize the interests of other jurisdictions.
Under the Restatement analysis, the only other "contacts" that may be considered are the
place where the relationship between the parties is centered and the place where the
parties are domiciled. The first of these two considerations mandates Afghanistan, as it is
the only jurisdiction where a relationship between the decedents and Presidential existed.
The Plaintiffs' Amended Complaint only references contacts between the decedents and
5
The Plaintiffs may argue that negligent conduct occurred in Florida, where the corporate
Defendants were initially domiciled. However, in their Amended Complaint, the Plaintiffs specifically
allege that the accident flight crew in Afghanistan negligently caused the crash by failing to wear oxygen
masks, failing to properly execute the flight, failing to maintain sufficient air speed and altitude, and failing
to maintain adequate terrain clearance. Moreover, to the extent Plaintiffs alleged negligence relating to
Presidential's operations, those claims are also centered in Afghanistan. Presidential maintained an
operations center at Bagram for the purpose of overseeing flights and flight crews, from mission briefings
to assignments, aircraft loadings, departures and completion. Of the numerous allegations of wrongful
conduct alleged by the Plaintiffs, very few, if any, actions occurred outside of Afghanistan.
8
Presidential in Afghanistan. Clearly, the plaintiffs' decedents accepted services provided
by Presidential in Afghanistan and boarded the flight in Afghanistan, pursuant to a
military mission. Courts have routinely identified centers of relationships based on fewer
contacts. See Leiske v. United States, 2001 U.S. Dist. LEXIS 2390 (D. Ill. 2001) (holding
that passengers who boarded a plane in Wisconsin for an interstate flight established a
relationship with the carrier in Wisconsin).
Generally, courts find that the relationship between a passenger and an aircraft
operator is centered either in the flight's point of departure or point of return. Bryant v.
Silverman, 146 Ariz. 41, 703 P.2d 1190, 1195 (1985); Rest. (Second) Conflict of Laws �
145, comment e. See also In re Air Crash Disaster at Washington, 559 F. Supp. 333,
355 (D.D.C. 1983) (the center of the parties' relationship was found to be either at the
origin or destination of the flight). In this case, the origin and destination of the flight
were in Afghanistan, which is therefore the geographical center of the parties'
relationships.
A review of the various domiciles of the parties and decedents establishes that
there is no one domicile state with a more significant interest in the liability issues herein
than Afghanistan. (See this Court's Order denying Plaintiffs' motion for remand [Dkt.
No. 66] at p. 6, wherein the Court notes that "the parties in the instant case apparently are
completely diverse.") Decedent Michael McMahon and his surviving family maintained
their permanent residence in Connecticut. Decedent Travis Grogan and his surviving
family resided in Virginia. Decedent Harley Miller and his surviving family lived in
Washington. There is no basis to assert that any of these states would have an interest in
9
determining the liability, or regulating the conduct, of non-resident companies outside
each of these state's borders.6
Florida, as the forum state and the state of incorporation for each of the corporate
Defendants may have some interest in the liability issues. However, the Defendants are
no longer domiciled in the State of Florida, as they have moved their corporate offices
and operations to North Carolina and, as a result, the Defendants would not justifiably
expect protection from Florida laws. See U.S. Department of Transportation, Federal
Aviation Administration, Airline Certificate Database, http://av-info.faa.gov/OpCert.asp
(Certificate Number P4YA652I issued to Presidential Airways, Inc.). Florida's interest
as the incorporating state is minimal when there is little if any in-state conduct to be
controlled, protected, or deterred. See Schneider National Transport v. Alexander and
Alexander of New York, Inc., 280 F.3d 532, 536 (5th Cir. 2002) ("The mere fact of
appellant's incorporation in Pennsylvania does not lead this Court to believe that that state
has the most significant relationship to the substantive issues to be resolved here."). See
also NL Industries, Inc. v. Commercial Union Insurance Company, 154 F.3d 155, 159
(3rd Cir. 1998) (rejecting application of New Jersey law where "New Jersey's only
connection with this litigation is that NL was incorporated and had some operations
there.").
In contrast, the relevant policy interests of Afghanistan are significant. Afghan
law is largely religion-based and evidences a strong concern for ensuring moral
responsibility, and deterring violations of obligations within its borders. (Declaration of
6
These states may have a more significant interest in ensuring adequate recovery for their citizens, but they
have no significant interest in regulating conduct or establishing the liabilities of nonresident companies.
Thus, while their law may become relevant, such will not occur, if at all, until a proper defendant is before
this Court.
10
Ian David Edge, attached hereto as Exhibit A, � � 3, 9.) A jurisdiction has a substantial
interest and paramount responsibility to protect the welfare of persons within its borders.
Wert v. McDonnell Douglas Corp., 634 F. Supp. 401, 405 (D. Mo. 1986). Accordingly,
Afghanistan has a great interest in ensuring that conduct within its borders complies with
Islamic law such that negligent and dangerous actions are deterred by the threat of full
responsibility for any consequences.7
No United States public policy would be violated by the application of foreign
law based on strict rules of proximate causation, limiting only the extent to which indirect
liability may be extended. The application of Afghanistan law, however, would facilitate
the working of the international system because Afghanistan would also apply the law of
the place of injury. See Harris v. Polskie Linie Lotnicze, 820 F.2d 1000, 1004 (9th Cir.
1987) (In a conflicts of law analysis, the Court noted that "choosing Poland's damages
law facilitates the working of the international system because Poland would apply the
same law under its choice-of-law rule, lex loci delicti.").
Given Afghanistan's ties to the claims at issue, the fact that it is the site of the
accident and the conduct complained of, and the fact that it provides the geographical
nexus for the relationship between the parties, Afghanistan has more significant contacts
than any of the states, and more compelling interests than any of the states in governing
the Plaintiffs' state law claims.
Bridas Corp v. Unocal Corp., 16 S.W. 3d 893 (Tex. App. 2000) provides the
7
Notably, Afghan law does not limit Plaintiffs' available recovery. Neither would Afghan law preclude a
lawsuit for the negligence of the individuals responsible for training, equipment, and operating procedures.
Under the law of Afghanistan, Plaintiffs feasibly would retain the ability to litigate their claims against the
individuals involved in the allegedly wrongful conduct, and the Plaintiffs feasibly would have the ability to
recover for their economic and noneconomic losses.
11
relevant guidance for the application of the Restatement's analysis in a case involving
actions of a domestic company on foreign soil. In Bridas, a Texas corporation was
accused of tortious interference with contracts in Turkmenistan and Afghanistan. The
plaintiff, a Texas corporation, had obtained oil and gas exploration contracts with the
governments of those two countries and claimed that the defendant caused those
governments to breach the contracts. The plaintiff argued that, because the defendant's
foreign acts were conceived in and directed from its Texas headquarters, Texas had an
interest in applying its law.
The Court rejected the plaintiff's argument because "both the quantity and quality
of the contacts identified in [Restatement Second] � 145 mandates the application of
foreign law to all tort claims asserted by [the plaintiff] because the parties and the subject
matter of this litigation have a more significant relationship to the nations of
Turkmenistan and Afghanistan than to Texas." Id. at 899. The plaintiff argued that,
because of the difficulty in ascertaining and predicting Turkmen and Afghan law, the law
of Texas should apply. The court rejected this argument as well, citing to an eight-day
evidentiary hearing on the choice of law issue and the testimony of nine foreign-law
experts, and concluded that Turkeman and Afghan law are "readily and reliably
ascertainable." Id. at 903, 906. Thus, the appellate court reversed the trial court and
determined that Islamic law applied to the Plaintiffs' tort law claims. Id. at 899.
The analysis of the facts before this Court, as set forth in detail above, calls for the
same conclusion. If any state law is to be applied, the Court should apply the law of
Afghanistan to the Plaintiffs' claims of respondeat superior and indirect liability against
Presidential.
12
C. Under the Law of Afghanistan, Plaintiffs' Amended Complaint Fails
to State a Viable Claim Against Presidential
On August 11, 2006, plaintiffs' counsel stated at oral argument, "Here there is no
law, there is no civil law system in the country of Afghanistan, which is where the crash
occurred." Transcript of Hearing on Motion to Dismiss, August 11, 2006, page 4. The
discussion which follows herein makes it clear that on the relevant issues raised by this
motion, Afghan law is well developed.
In determining the law of a foreign country, the court may consider any relevant
material or source, "whether or not submitted by a party or admissible under the Federal
Rules of Evidence." Forzley v. AVCO, 826 F.2d 974 (11th Cir. 1987) (citing Rule 44.1 of
the Federal Rules of Civil Procedure). See also Locals 302 & 612 of the Intl Union of
Operating Engineers-Employers Constr. Indus. Retirement Trust v. Blanchard, 2005 U.S.
Dist. LEXIS 17679 (D.N.Y. 2005).
The attached declaration of Professor Ian David Edge establishes that
Afghanistan's legal system consists of Islamic law and state-enacted legislation. (Edge
Declaration, �� 3-9.) Professor Edge, a law professor, London barrister, and noted
consultant on Islamic law, explains that the traditional rules of Islamic law are referred to
as the Shari'a, and they are interpreted not by judges, but by scholars. Id. In most areas
of Afghanistan, the Shari'a courts rely to a great extent on Islamic law, as written in the
Qur'an, the Sunna, and the Mejelle. Id. The recently codified Afghan civil code is based
on the most important principles of the Shari'a. Id.
Under Afghan law, liability attaches to a person when the harm caused is direct
and the causation principles are strict. Id. � � 12-15. (See also Declaration of Mark
Hoyle, attached hereto as Exhibit B.) In other words, ordering a person to do something
13
illegal does not make the person making the order liable because there is no causation as
to the person giving the order under the Shari'a. (Edge Declaration, � � 12-15.) This is
evidenced by Afghanistan Civil Code Article 787, which states: "An act is attributed to
its doer not to the one who commands it, unless the doer is under compulsion. As to
actual behavior, what is regarded as compulsion is complete compulsion only." Id., � 13.
Article 551 of the Afghanistan Civil Code defines "compulsion" as "intimidation of a
person unreasonably to execute an action without his consent, whether it may be material
or spiritual."
Further, Article 1510 of the Mejelle states: "The judgment for an act is made to
fall on the person who does it. And it does not fall on the person who gives the order, as
long as he does not compel the doing of the act." Id., � 14. The Mejelle provides the
following illustration: "A instructs B to throw certain property into the sea. B does so
knowing that the property in question belongs to someone else. The owner of the
property can call upon B to make good the loss. The person who gave the instruction is
not liable unless he used compulsion." Id. Accordingly, Afghan law, following
Shari'a principles, does not recognize the doctrine of respondeat superior or the concept
of indirect liability except where the direct actor is intimidated or coerced. Id., � 15.
(See also Declaration of Mark Hoyle, attached hereto.)
In Bridas v. Unocal Corp., Professor Edge was accepted by the Court as an expert
on Afghan law. Bridas, 16 S.W. 3d at 903. Based largely on the testimony of Professor
Edge, the Court acknowledged Afghanistan's legal principles which place liability
squarely and solely on the direct actor:
The concept is a profound one actually. The law is linked
with morality and the onus for acts is placed on the person
14
who has sort of got the point for the decision, that is, the
one who takes it upon himself to perform the wrongful act,
who voluntarily goes ahead and does something immoral.
So the person who has ordered it offers no excuse for the
person who does it. The person who does it is going to be
held liable. The law is religious law, and they feel that the
person who makes the fateful step to do the wrongful thing
had a point of decision, and he should have withheld the
act.
We may make a moral judgment somewhat differently.
But they have felt to accentuate the moral responsibility of
the individual, this ought to be the rule.
Id. at 905. Based on these conclusions, the Bridas Court held that Defendant Unocal
was entitled to judgment because the applicable foreign law did not recognize the stated
tort causes of action. Id. at 906. In doing so, the Court rejected any argument that the
subject Islamic law violated public policies:
Briefly, we return our attention to the issue of public
policy, which permeates the respective provisions
contained in section 6 of the RESTATEMENT (SECOND)
CONFLICT OF LAWS and is heavily relied upon by
Bridas in assailing the trial court's summary judgment. We
observe that Texas courts will not enforce a foreign law
that violates good morals, natural justice or is prejudicial to
the general interests of our citizens. See Gutierrez, 583
S.W. 2d at 321. As the Supreme Court recognized in
Gutierrez in analyzing the public policy ramifications of
applying the laws of Mexico and in rejecting the
"dissimilarity doctrine," it is clear that the laws of
Turkmenistan and Afghanistan, respectively are different
than ours in many respects. Id. However, these differences
by no means render the laws of Turkmenistan and
Afghanistan violative of Texas public policy. Id. The laws
of these nations have been in place and followed for many
years, if not many centuries. Their laws are well-
established, predictable, and certain.
Id. at 906.
Professor Edge's current declaration underscores and supports the Bridas Court's
15
interpretation of Afghanistan's long-standing legal precedent. Under these principles,
Plaintiffs' claims against Presidential, based on respondeat superior and indirect liability,
are not cognizable.8
WHEREFORE, Defendants Presidential Airways, Inc., Aviation Worldwide
Services LLC, STI Aviation, Inc., and Air Quest, Inc. respectfully request that the Court,
pursuant to Rule (12)(b)(6), dismiss the Plaintiffs' Amended Complaint on the grounds
that it does not state a claim against these corporate defendants under the applicable law.
Dated: April 30, 2008 Respectfully submitted,
By: s/Mark A. Dombroff_____
Mark A. Dombroff, Esq.
Thomas B. Almy, Esq.
Monica L. Irel, Esq.
Fla. Bar No.: 0142395
DOMBROFF GILMORE
JAQUES &FRENCH P.C.
Wachovia Financial Center
200 South Biscayne Blvd., Suite 1050
Miami, FL 33131
Telephone: (305) 670-4843
Facsimile: (305 670-4846
e-mail: mirel@dglitigators.com
Attorneys for Defendants Presidential
Airways, Inc., Aviation Worldwide Services,
LLC, STI Aviation, Inc. and Air Quest, Inc.
8
This is not to say that the plaintiffs have no cognizable claim under Afghan law against any party arising
from this incident. The Plaintiffs may have a viable claim against the estates of the flight crew or other
operations personnel for their direct actions, under the Afghan laws stated above. The determination of
damages for such a claim may be governed by the law of the forum state or the laws of states where the
Plaintiffs are domiciled, based on an issue-based analysis of the applicable conflict-of-laws principles.
16
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on May 1, 2008, I electronically filed the foregoing
Defendants' 12(b)6 Motion to Dismiss and Incorporated Memorandum of Law with
the Clerk of Court, U.S. District Court, Middle District of Florida, by using the CM/ECF
system which will send a notice of electronic filing to all counsel of record who are
CM/ECF users in this case.
I FURTHER CERTIFY that I mailed the foregoing document and the notice of
electronic filing by First Class Mail to the following CM/ECF participant:
Justin Chretien
Aviation & Admiralty Litigation
Torts Branch, Civil Division
Department of Justice
P.O. Box 14272
Washington, DC 20044-4271
s/ Monica L. Irel______
Monica L. Irel, Esq.
17
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